Elements of a Crime

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.

“What are the elements of a crime? Why do these matter? Furthermore, given the global direction of the world, how do these elements differ from nation to nation?

By C J Oakes

The Elements of a Crime: Differing Views

Historically, the elements of a crime are simple: The act itself and the intent to do harm.  For a crime to have been committed, a person must have done the wrongful act AND meant to do so. Proving the act is at times easy, but proving intent is more difficult. Hence, these elements lend well to the traditional idea of placing the burden of proof on the accuser, that is, “innocent until proven guilty.”

Ancient Law Codes and the Burden of Proof (Elements of the Crime)

Tracing this notion of innocence before proof of guilt to ancient times, one of the earliest codified legal systems included this. Hammurabi’s Code stated,

“If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death” (Andrews, 2013).

In other words, if one person charged another with a capital crime and failed to prove that time, the accuser was to receive the penalty. Not a bad idea really.

That aside, the elements of the crime under Hammurabi’s Code can be extrapolated as simply: Proof of the crime.

Moving to another ancient source, the Bible at Deuteronomy 19:15 declared by law the following:

“One witness is not enough to convict anyone accused of any crime or offense they may have committed. A matter must be established by the testimony of two or three witnesses.” New International Version

In other words, the elements of a crime in the ancient Jewish law code was to be proven only through eyewitness testimony and then by at least two witnesses.

Elements of a Crime in Ancient Rome

More than anything else, the Ancient Roman world gave civilization the rule of law. When one citizen charged another with a crime, the case was brought before a Magistrate. It was the Magistrate’s job to determine if a law appears to have been broken and if so, provide the legal basis for presentation to a Judex. The Judex would then listed to attorney arguments, consider the evidence presented, and render a judgment (Hays, 2013). Sound familiar?

Over time, the lawyers in the Roman Republic developed their own methods and styles of proving cases, a system not unlike modern America and other Western nations. Still, the elements of a crime were simple: Prove the case. However, we must note that the key elements of modern criminal proof have their foundation in Roman thought.

However, we must note that the key elements of modern criminal proof have their foundation in Roman thought. Attorney’s in Rome were creative and as Cicero appears to note, they understood that there was more to a crime than simply the action. Yet, the modern concepts upon which the elements of a crime are based cannot be entirely attributed to the Republic. Chesney (1939) explains:

“To comprehend the beginnings of the mens rea concept at the end of the twelfth century, two specific influences must be observed. One was the Roman law, recently revivified and sweeping over the European continent with renewed vigor. It was again recalled that Cicero (Pro Tullio, 22,51) had set it down that it is an implied rule of mankind (tacita lex est humanitatis) to punish not the occurrence but the ‘consilium,’ and that ‘sciens dolo malo’ had been found in the laws of Numa. The Roman ‘dolus’ and ‘culpa’ were being grafted onto the English Law and along with them the notion of mental element in crime.”

“The second influence, more powerful than the first, was canon law and a consequent insistence upon moral guilt. A consideration of sin from the view point of canon law involves the mental element almost equally with the physical act. In the Sermon on the Mount, Christ seems to have laid the philosophy to support this proposition (Matt. 5:27-28). Here, as was pointed out, the desire, wish, and intent determine culpability.”

So, somewhere between the Fall of Rome and the rise of English Common Law, the first two elements of a crime as presented today had their roots laid.

The Modern Elements of a Crime

As with most features of criminal justice and law, the elements of a crime vary slightly from nation to nation. Most Western Nations hold to the Common Law style that the elements of a crime are the Mens Rea and the Actus Reus (mental state/intent and the actual act defined as a crime by law).  By way of example, note how the government of South Australia words this concept:

“For a criminal offence to occur there must be two main elements – the prohibited conduct and the mental element of a guilty mind or intention.” – Lawhandbook 2016

So, one element without the other cannot be a crime. That has been a common law rule for centuries in Western lands. Yet, in recent decades that concept has been watered down somewhat as the next sentence in this example demonstrates,

“Unless an offence falls into the unusual category of a strict liability offence, the prosecution must, in order to prove that a person has committed an offence, show that both these elements were present.” – Lawhandbook 2016

What is a Strict Liability Offence Under Which Mens Rea Does Not Need to be Present?

Australia is not the only Western land to slightly alter the notion that both Mens Rea and Actus Reus must be present for a crime to have been committed, but the official site of the government provides the best explanation of why. It states,

“Strict liability offences are the exception to this rule and require only the commission of the prohibited conduct for an offence to arise. That is, no mental element is required. Strict liability offences are usually offences of a relatively minor regulatory nature.

“For example, if a driver is speeding, the prosecution does not need to show that the driver also had a guilty mind or intended to travel at that speed. As this is a strict liability offence, the mere fact of travelling at a prohibited speed is enough to make it an offence.”- Lawhandbook 2016

In many courtrooms across America, juries are often instructed that IF the prosecution proves the defendant committed the criminal act, they MUST render a verdict of guilty. In other words, judges often instruct juries to ignore the Mens Rea of the crime as if the only element is the Actus Reus. This is a similar approach English Courts took against the early American Colonists that led to the American Revolution and the U.S. Constitutions legal restrictions.

Is it true that juries MUST obey a judge who issues such an order?

Generally…NO. As noted in a textbook published in the University of Minnesota Open Libraries project,

“With exceptions, every crime has at least three elements: a criminal act, also called actus reus; a criminal intent, also called mens rea; and concurrence of the two.” – UMN

In other words, in most cases, there are three elements to a crime: The Act, the Intent, and a convergence of the two; that is, BOTH Intent AND the Act must be present for there to be a crime. However, it qualifies this statement with “With exceptions.”

What are some of the exceptions?

Where by statute the law states that only ONE of the elements be present to constitute a crime, that is valid. For instance, Intent to Commit and/or Attempted_____ are crimes in most jurisdictions. This applies to situations wherein someone plans a crime but is thwarted.

For instance, Intent to Commit and/or Attempted_____ are crimes in most jurisdictions. This applies to situations wherein someone plans a crime but is thwarted. Because an attempt to commit a crime, that is, because Intent was present and a crime would have been committed should it have not been prevented, the law states there should be a penalty, a punishment.

Likewise, in some situations, the law may stipulate that intent need not be present. A good example of this is the one cited by the Lawhandbook of South Australia. Traffic violations need not require intent in most jurisdictions.

Elements of a Crime, Democracy, and the Right to Judge the Law

In conclusion, although modern Western civilization defines a crime as having the elements of Intent (Mens rea) and the Act (Actus Reus) other parts of the world may differ. This section of pages is dedicated to considering how the elements of a crime are applied throughout the world. As the world becomes more globalized, Western notions of criminal justice and law will tend to hold more sway over how other nations conduct their court cases, but that is not the case at the moment.

Democracy is governing much of the world today and although the United States is considered the bastion of that governing philosophy, there is one factor which weighs in on this to the negative side of the equation.

When a judge tells a jury they are to find a guilty verdict REGARDLESS of Intent so long as the prosecution has found the ACT occurred, he or she is subverting the normal cause of Democracy. This is because, in a Democracy, the citizens decide what is right and wrong in the eyes of the law, not only judges and legislators. Thus, ANY jury at ANY time can rule against the law despite the act of breaking the law by the defendant. This is a hallowed concept in American law known as Jury Nullification. Read quotes from Founding Fathers and famous American Jurists here.

What Say the American Founding Fathers on Jury Nullification?

First U.S. Supreme Court Chief Justice John Jay said, “The jury has a right to judge both the law as well as the fact in controversy.”

Second President of the United States John Adams said that jurors must “find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.”

First U.S. Treasury Secretary Alexander Hamilton said that jurors should dismiss charges “if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong.”

Associate Justice on First Supreme Court and Signer of Declaration of Independence Samuel Chase said “The jury has the right to determine both the law and the facts.”

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